The Role of the Judge and Autonomy of the Parts in the Civil Process. Basic Issues

Abstract

Author focuses on problem of active role of the judge in civil cases. One of the elements of administering justice is settling civil cases – particularly those relating to the property rights arising from civil law relationships. Settling civil disputes in the civil proceedings (or a court regulatory activity in non-litigious proceedings) tends to attain the `legal peace' between the parties to the proceedings, acts as an educational and preventive body. The aim of the proceedings is to examine a case by a court – claim submitted by a party (to the proceedings) – and to adjudicate a just and complying with the law decision. As it is emphasized in a doctrine the matter concerning adjudication of a just decision (sententia iusta) in a fair proceedings is a final objective each proceedings aims at.

Just settlement procedures mean that each person (entity), whom the settlement applies to, during the act is treated in a manner consistent with the relevant procedure rules, Institutionalization of just settlements concerning somebody's acts includes several element, for instance: rules determining whether the constructing entities are competent to adjudicate socially reliable decisions (e.g. courts), rules determining the manner of accurate settling the content of the accepted justice formula as well as rules regarding the manner of establishing the actual situation (e.g. hearing of evidence rules in civil proceedings).

On the basis of defined in this manner objective of the civil proceedings and the conditions of just proceedings some questions arise, namely who (what entity) is responsible for carying out this objective – either a court (a judge), state authorities (e.g. public prosecutor) or the main burden should be imposed on the entities concerned with the financial outcome of a cas – parties to the proceedings. Can a court engage in establishing the facts of a case or can it only apply the legal norm most accurate for the actual facts presented by the parties and attend to the formal conditions of proceedings are observed.

Authors states that the judge in civil casses should be active in that scope.